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John Shadegg’s Enumerated Powers Act
Congressman John Shadegg, who I wrote about here and here during last year’s race to replace Dick Armey as House Majority Leacder, has proposed an interesting new bill called the Enumerated Powers Act:
Yesterday, Congressman John Shadegg reintroduced the Enumerated Powers Act, a bill that highlights the importance of the Tenth Amendment and forces a continual reexamination of the role of the federal government.
“The Enumerated Powers Act would require Members of Congress to include an explicit statement of Constitutional authority into each bill that is introduced. It would hold Congress accountable for its actions,” said Shadegg.
The Tenth Amendment states, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
“According to the Tenth Amendment, the national government cannot expand its legislative authority into areas reserved to the States or the people,” said Shadegg. “It is a well-known fact that the size and scope of the federal government has exploded since the New Deal. Congress continues to operate without Constitutional restraint, creating costly and ineffective programs and blatantly ignoring the principles of federalism.”
As a symbolic reminder of where Congressional authority originates from and what its limits are, the bill is a good idea. In reality, though, it really wouldn’t amount to much of anything. As James Joyner points out, given the manner in which Congressional authority has evolved beyond the limits of the Constitution over the past 220 years, a bill like Shadegg’s would do nothing to stop the expansion of government:
Unfortunately, we so long ago moved away from governing according to the Constitution that a return to the 1789 model is inconceivable. Further, the Framers themselves left a gapping loophole in the concept of enumerated powers-only governance in the very section where said powers are enumerated, Article I, Section 8: “To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.†So, really, all Congress would need to do is claim that any bill it signed was “necessary and proper†and that it related to those “other powers.â€
While I would argue that the Founders never intended the necessary and proper clause to be the catch-all phrase that it has become, that is how it has been interpreted for two centuries now. It’s going to take alot more than something like the Enumerated Powers Act to change the way things are today.
More information about Shadegg’s bill can be found on Thomas.
H/T: Marshall Manson
The Necessary and Proper Clause is basically a “hold harmless” clause, meaning that there will be little scrutiny of the particular means Congress uses to achieve its constitutional ends.
The problem, of course, is that the expansive reading of the Commerce Clause of Art. I, Sec. 8, allows Congress to do just about anything.
- Josh
Comment by Wild Pegasus — March 9, 2007 @ 12:08 pmJosh,
The problem isn’t the commerce clause, it’s the necessary and proper clause. It originally meant that anything Congress did had to be essential to an enumerated power. For example, the first National Bank was largely declared unconstitutional because while it was helpful to regulate the value of money, it was not actually essential to doing so.
Unfortunately, that got weakened to the point where the Supreme Court will allow anything that is even tangentially related to one of the enumerated powers (usually probably including “general welfare”) to be considered “necessary and proper”.
The commerce clause wouldn’t be so bad if the Court hadn’t given Congress the ability to regulate anything even remotely affecting interstate commerce, regardless of whether it’s “necessary and proper”.
Comment by Brad Warbiany — March 9, 2007 @ 1:36 pm